Nancy D. Polikoff is the author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. She is professor of law at American University. You can read her blog at http://beyondstraightandgaymarriage.blogspot.com/.
In all the glee over the end of Don't Ask, Don't Tell, there's a constituency that has received little notice: children with a gay service member nonbiological parent. Those parents have been unable to adopt their children, or sometimes even to live with them, for fear that knowledge about their family circumstances would trigger a discharge. That fear is now lifted. The children will now have greater economic and emotional security.
It's been bad enough when the couple raising the child stays together and does the best they can to nurture their children under a veil of secrecy. But it's been especially difficult if the couple splits up. The bio mom has had the heavy weapon of threatening to out her ex-partner if she tried to maintain a relationship with their children.
A case scheduled to be argued in the California Court of Appeal next week illustrates another insidious impact of DADT on gay and lesbian parents. California has some of the best law in the country for assuring that children do not lose one parent when their parents split up. But when S.B. and S.Y. split up, S.B. denied that S.Y. was a parent of the two children (now 11 and 6) adopted by S.B. during their thirteen-year relationship. Part of the evidence she used was that the couple were not registered domestic partners, S.Y. did not adopt the child, and S.Y., a Colonel in the U.S. Air Force Reserves, maintained a separate residence for most of their relationship, even though she spent evenings and several nights a week in the home with the children.
After a two day trial, the court found that S.Y. did qualify as a presumed parent under California law. To S.B.'s contention that S.Y. was nothing more than someone she was dating who sometimes spent the night, the trial court said the following: "The [respondent] made sacrifices at her job, personally, financially, to care for the children. A guy who is spending the night on the couch ... would not do all these things, would not clean up my kid’s puke or set up college accounts, pay for their therapy, volunteer at school and so forth." The court made numerous other factual findings in support of its ruling.
S.B. has appealed. The appeals court is supposed to accept the facts as determined by the trial judge, who was in the best position to judge the credibility of the witnesses and weigh the evidence. Hopefully, that will be enough to sustain these children's rights to a relationship with both their parents.
From now on, fewer children should be in this position, as the end of DADT removes one more barrier to recognition of their families.